Independent counsel: No more, no less a federal prosecutor

Georgetown Law Journal, Jul 1998 by Dash, Samuel

A. ACCOUNTABILITY OF THE INDEPENDENT COUNSEL

This is the most empty of the criticisms. The charge is not grounded in the statute, but relies on the thesis that the independent counsel, unlike the Attorney General, is not part of the political or administrative structure of the federal government, and is, therefore, not under political party or executive branch supervision. This is true, as far as it goes; independence is a central goal of the statute. It is nonsense to say, however, that the independent counsel is not accountable for what he or she does.

The 1994 Act imposes a heavy scheme of accountability on independent counsel. Under 28 U.S.C. sec 595, Congress reserves oversight powers with respect to an independent counsel and can hold public hearings on his conduct.17 Also, under 28 U.S.C. sec 594(f), the independent counsel must comply with written and other established policies of the Department of Justice respecting enforcement of the criminal law.18 Most independent counsel borrow for their principal staff positions Assistant United States Attorneys from all over the country because of their experience in federal prosecution and their knowledge of how to comply with Justice Department guidelines.

Critics of the independent counsel statute contend that the requirement that the independent counsel comply with Justice Department policies provides no meaningful restriction on the independent counsel.19 This claim is strange indeed, particularly because these critics most often cite no departures by independent counsel from Justice Department policies, but claim, instead, that this statutory restriction is unenforceable. In fact, however, the requirement that independent counsel comply with Department of Justice policies is taken very seriously by independent counsel. The experienced federal prosecutors on loan to the independent counsel constantly check their conduct against Justice Department policies. Not only do they adhere to these policies, they invariably follow even higher standards because of their extensive experience as prosecutors and the unusual visibility and criticism of an independent counsel investigation.

Individual independent counsel are also subject to removal. Under 28 U.S.C. sec 596(a), the Attorney General may remove an independent counsel for good cause, physical or mental disability, or any other condition that substantially impairs the independent counsel's performance.20 Critics argue that an Attorney General will be exceedingly reluctant to exercise this power for fear of a political backlash. Surely, however, if an independent counsel engages in the egregious abuses alleged by the critics, there will be sufficient press and public support to persuade the Attorney General that firing the independent counsel will be a popular action.

To skeptics, dismissal of the Attorney General's statutory authority to fire the independent counsel for cause suggests nothing less than a belief that law itself is a meaningless restraint on human conduct. Independent counsel are very much aware that their investigative and prosecutorial decisions are subject to review by the Attorney General. It is true that the Attorney General is unlikely to exercise this power to remove an independent counsel except in cases of egregious misconduct. But, an independent counsel is no less accountable than the Attorney General who, of course, supervises Justice Department investigations and who is removable only by the President or through impeachment. Moreover, this impeachment power is an authority the House and Senate have never exercised with regard to an Attorney General.